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Zaid explains that the handling of classified documents is largely governed by federal administrative policies dating back to President Clinton with some changes by Presidents Bush and Obama. Every agency also sets its own internal policies, but nondisclosure agreements are the same for everyone.

Zaid says that there are two issues in this controversy that have sometimes been confused. One issue is having a private server, which Zaid says is unprecedented. However, nearly every employee sometimes uses a non-governmental device or email account from time to time. This is permitted so long as a copy is sent to the official server for record-keeping purposes. However using a private server circumvents FOIA requirements, and the State Department should have acted on it.

Mark S. Zaid

A separate issue is having classified information on a private server, something Zaid says is not ever allowed. Having a private server may have shown poor judgment, but it was not illegal. Using such a server to store classified information violates the law. For Secretary Clinton to conflate these issues hurts her credibility. Zaid points out that there are several ways in which the government might learn of security violations, and there are a number of ways in which it might respond.

Classified information is inadvertently disclosed with some frequency. There is typically no reaction to such disclosures. The charge against Secretary Clinton and her staff is that they improperly included classified information in unclassified documents. Zaid says that many minor violations are handled by administrative revocation of someone’s security clearance.

The allegations about the Clinton server is that the classified information on it came from other agencies, so Secretary Clinton would not be allowed to declassify that information. Mishandling of such information could carry criminal penalties. The ongoing investigation involves a determination by these other agencies whether any of their classified information is on the server. Zaid suggests that, at this point, the potential liability for mishandling classified information is far greater for Secretary Clinton’s staff than for her. Liability may depend also on the actual secrecy and sensitivity of any classified information.

As to the level of risk, Zaid notes that “rank has its privilege.” Low level people always get harsher punishment than those at the top. The perfect example is Gen. Petraeus, former CIA director, who got a large fine and probation, but no jail time for disclosing classified information to his mistress. Zaid suggests that administrative action would be an effective solution in this case.

Mark Zaid of Mark S. Zaid, P.C., specializes in litigation and lobbying on matters relating to international transactions, torts and crimes, national security, foreign sovereign and diplomatic immunity, defamation (plaintiff) and the Freedom of Information/Privacy Acts (FOI/PA). He often represents former/current federal employees, intelligence and military officers, Whistleblowers and others. The Legal Broadcast Network is a featured network of Sequence Media Group.

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